Presumption of Legitamacy

PRESUMPTION OF LEGITIMACY.

PROJECT SUBMITTED BY Srinivas Atreya, 519. Deepika S, 520. Fatima Nadackal, 521. Gaurav Singh, 522. Harveen Dhillon, 523.

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INDEX LEGAL PRESUMPTIONS

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PRESUMPTION OF LEGITIMACY

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 NEED AND CONDITIONS FOR FOR PRESUMPTIONS OF LEGITIMACY

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EVIDENCE FOR REBUTTAL OF THE PRESUMPTION

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PRESUMPTION OF LEGITIMACY UNDER COMMON LAW

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PRESUMPTION OF LEGITIMACY IN INDIA

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IMPORTANT CASES

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RECOMMENDATIONS OF MALIMATH COMMITTEE

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REFORMS REQUIRED

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CONCLUSION

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REFERENCE

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PRESUMPTION OF LEGITIMACY.

LEGAL PRESUMPTIONS: PRESUMPTIONS: -- A fact which is assumed to be true under the law is called a presumption i.e. the court will assume a fact to be true until it is rebutted by a greater preponderance of evidence against it.

PRESUMPTION OF LEGITIMACY: - According to this presumption, a child born to a married couple is presumed to be their legitimate offspring in the absence of a clear  demonstratio demonstration n that the husband husband could not possibly be the father i.e. a child born of a husband husband and wife living together together is presumed to be the natural natural child of the husband. husband. This presumption is based on the principle, ‘ Odiosa Odiosa et inhone inhonesta sta non sunt sunt in lege lege  prae sumenda' , which means “nothing odious or dishonourable will be presumed by the law”. Another principle which is in favour of the presumption of legitimacy is, 'Pater est quem nuptioe demonstrant’  demonstrant’  which means “he is the father whom the marriag marriagee indicat indicates”. es”. This presum presumpti ption on of legiti legitimac macy y is also known known as the Lord Lord Mansfield’s rule who articulated it for the sake of decency, morality and policy.

 NEED FOR PRESUMPTION OF LEGITIMACY: - Legislatures across the world  have accepted the legitimacy presumption to protect the institution of family and to  secure the future of the child. The presumption of legitimacy is primarily a common law principle and it had severe restrictions on the rebuttal of this presumption, the main reason being an aversion aversion to declaring declaring children illegitimate, illegitimate, thereby thereby depriving  depriving  them of the rights of inheritance and succession. Another reason was to protect the  peace and stability of families, which could not be possible if partners start suing  each other stating that the child is illegitimate.

COND CONDIT ITIO IONS NS FOR FOR PRES PRESUM UMPT PTIO ION N OF LEGI LE GITI TIMA MACY CY: The foll follow owin ing g PTION ION LEGIT GITIM IMAC ACY: Y:: - The conditions are required for the presumption of legitimacy to hold good.

1) The child child should should be born born of or conceiv conceived ed out of a lawful lawful wedlock wedlock.. 2) There should should be absence absence of sufficien sufficientt evidence evidence to the the contrary. contrary.

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EVIDEN EVIDENCE CE FOR REBUTTAL REBUT TAL PRES UMPTIO TION: N:: - The eviden evidence ce for  REBUTT REB UTTAL AL OF OF THE PRESUMP PRESU PR ESUMPT MPTION ION: rebutt rebuttal al maybe maybe the evidence evidence of non access, access, husban husband’s d’s impotence impotence,, the uses uses of any other precaution to avoid the possibility of a child or the results of a DNA test.

PRESUMPTION OF LEGITIMACY UNDER COMMON LAW: - The presumption of legitimacy is a very strong presumption under the common law and very severe and strict restrictions were placed for the rebuttal of this presumption. This presumption is not even rebuttable by the declaration of the husband or the wife stating that the child is illegitimate1. Also the doctrine of equitable parent is a reflection of the common law tradition tradition which is strongly strongly in favour favour of the presumption presumption of legitimacy. According to this doctrine, a husband who is not the biological father of the child c hild conceived or born durin during g the the marr marria iage ge mayb maybee a lega legall fath father, er, if the the husb husban and d and and chil child d mutu mutuall ally y ackno acknowl wled edge ge a fath father er-ch -chil ild d rela relatio tions nshi hip p or the the moth mother er help helpss deve develo lop p such such a relationship, or if the husband is willing to take the responsibility of paying child supp suppor ortt and and there therefo fore re desi desires res the the right rightss affo afford rded ed to a paren parentt2. But But once once this this  presumption is rebutted, the child in question loses all his rights of inheritance and succession. A child was considered to be illegitimate under common law if the parents were not married to each other at the time of the child’s birth even though they got married later. This presumption was also rebuttable upon the proof that the husband was was eith either er phys physic icall ally y inca incapa pabl blee of impr impreg egna nati ting ng or was was absen absentt at the the time time of  concep conceptio tion. n. If any of these these condit condition ionss are proved proved,, the child child would would be declar declared ed illegitimate and he would lose his rights of inheritance and succession. In this regard, the common law is considered to be a little backward backward as modern modern law has given more rights for the non marital child.

PRESUMPTION OF LEGITIMACY IN INDIA: - The legitimacy presumption is a legally legally valid presumption presumption in India. This principle principle can be found in Section Section 112 of the Indian Evidence Act which states that,

“Birth during marriage, conclusive proof of legitimacy - The fact that any person was  born during the continuance of a valid marriage marria ge between his mother and any man, or  within within two hundre hundred d and eighty eighty days days after after its dissol dissoluti ution, on, the mother mother remain remaining ing 1 2

Russell V Russell. Michael H case, U.S Supreme Court.

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unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.”

This section highlights highlights the common common law principle principle that the child born out of lawful wedlock is presumed to be legitimate unless it can be shown that the parties to the marriage had no access to each other. Thus, in the Indian scenario, only non access can be a relevant evidence for rebuttal of the presumption.

The results of a DNA test, though used as evidence by many courts under Section 45 of the Indian Evidence Act 3, is not yet a conclusive proof under Section 112 4 or under  any of the legislations enacted. Section 112 refers to non access as the sole exception. Therefore, as the language of the section stands, no other evidence is permissible except non access, to prove that a person is not the father 5.

In the year 2003, 2003, The The Indian Indian Evide Evidence nce (Amendmen (Amendment) t) Bill Bill was propos proposed ed on the recommendation of the 185th Law Commission Report. This Bill provides for DNA tests in paternity disputes.

Under the proposed Bill, Section 112 of the Indian Evidence Act would read as under:

Birth during marriage conclusive proof of legitimacy except in certain cases

“112  The fact that any child was born during the continuance of a valid marriage between its mother and any man, or within two hundred and eighty days, (i) after after the marria marriage ge was was declar declared ed nullit nullity, y, the the mother mother remain remaining ing unmarried, or

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Opinion of Experts: - When the Court has to form an opinion upon a point of foreign law, or of  science, or art, or as to identity of hand writing or finger-impressions, the opinions upon that point of   persons specially skilled skilled in such foreign law, science science or art, or in questions questions as to identity of handwriting handwriting or finger impressions, are relevant facts. Such persons are called experts.

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Shaik Fakruddin V Shaik Mohammed Hasan. Kanti Devi Vs Poshi Ram, Supreme Court of India.

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(ii) (ii) afte afterr the the marr marria iage ge was was avoi avoide ded d by diss dissol olut utio ion, n, the the moth mother er remaining unmarried, shall be conclusive proof that such person is the legitimate child of that man, unless

(a) it can be shown that the parties to the marriage had no access to each other at any time when the child could have been begotten; or

(b) it is conclusively established, by tests conducted at the expense of  that man, namely,

(i) (i) medi medica call test tests, s, that that,, at the the rele releva vant nt time time,, that that man man was was impotent or sterile, and is not the father of the child; or

(ii) blood tests conducted with the consent of that man and his wife and in the case of the child, by permission of the Court, that that man is not the father of the child; or

(iii) DNA genetic printing tests conducted with the consent of  that man and in the case of the child, by permission of the Court, that that man is not the father of the child; and

Provided that the Court is satisfied that the test under sub-clause (i) or sub-clause (ii) or sub-clause (iii) has been conducted in a scientific manner manner according according to accepted procedures procedures,, and in the case of each of  these sub-clauses (i) or (ii) or (iii) of clause (b), at least two tests have been conducted, and they resulted in an identical verdict that that man is not the father of the child.

Provided further that where that man refuses to undergo the tests under sub clauses (i) or (ii) or (iii), he shall, without prejudice to the provisions of clause (a), be deemed to have waived his defence to any claim of paternity made against him.

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But this Bill has not yet been passed and hence DNA tests still do not have the necessary legislative backing.

IMPORTANT CASES: - Time and again there have been cases where the question of  relevance of blood tests and DNA tests to determine the paternity of the child has arisen. There have been different decisions given based on circumstances.

In the case of Sharda Sharda V Dharmp Dharmpal, al, the questi question on was wheth whether er a party party to a divorc divorcee  proceeding can be compelled to undergo a medical examination. Here an order for a DNA test was opposed by the respondent on the grounds that it would violate his Right to Privacy under Article 21 of the Constitution. The Supreme Court in this case rejected the respondent’s claim and held that in spite of an order passed by a Court, a  person refuses himself to submit to such medical examination, a strong case for  drawing adverse inference would be made out 6. It was also held that there is nothing  brutal or offensive or shocking in taking the blood sample for DNA test under the  protective

eyes

of

law.

But

in

the

case

of Ningamma V Chikkiah, it was held that the testing of the blood groups violates Article 21 of the Constitution.

In Mrs. Kanchan Kanchan Bedi and Anr . V. Shri Gurpreet Singh Bedi, the parentage of the infant was in question, and the application filed by the mother for conducting DNA test was vehemently opposed by the father contending that it would violate his rights. This was a case for grant of maintenance maintenance and it was held that if the parties willing to submit themselves to the DNA test, it won’t be a violation of rights.

In the cases of Gautam Kundu V State of West Bengal and Tushar Roy V Sulka Roy, it was held that that DNA tests or any kind of medical medical examinati examination on for determin determining ing thepaternity of the child is not permissibu8i78ile. Both these cases were claims for  maintenance. A similar judgement was observed by the Supreme Court in the case of  Ramkanya Bai V Bharatram.

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Section 114 of the Indian Evidence Act enables a Court to draw adverse inference if the party does not produce the relevant evidences in his power and possession.

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From the above decisions, it is clear that there is no standard rule which is applicable to the question of DNA tests to determine the paternity of a child.

However, the case of Gautam Kundu V State of West Bengal is considered to be a standard case law as it has laid down exhaustive procedures relating to the validity of  DNA tests and their admissibility to prove parentage.

The following observations are very important and are generally referred to regarding such cases: (1) That courts in India cannot order blood test as a matter of course; (2) Wherever applications are made for such prayers in order to have roving inquiry, the prayer for blood test cannot be entertained. (3) There must be a strong prima facie case in that the husband must establish nonaccess in order to dispel the presumption arising under Section 112 of the Evidence Act. (4) The court must carefully examine as to what would be the consequence of  ordering the blood test; whether it will have the effect of branding a child as a bastard and the mother as an unchaste woman. (5) No one can be compelled to give sample of blood for analysis. Further the court said Blood-grouping test is a useful test to determine the question of  disputed paternity. It can be relied upon by courts as a circumstantial evidence, which ultimately excludes a certain individual as a father of the child. However, it requires to be carefully noted no person can be compelled to give sample of blood for analysis against his/her will and no adverse inference can be drawn against him/her for this refusal. RECOMMENDATIONS OF MALIMATH COMMITTEE: Apar Apartt from from this, this, gene general ral guid guidel elin ines es have have also also been been prov provid ided ed by the the Mali Malima math th Committee Report,

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1. Sec. 313 of the CR.P.C, which deals with the power of the court to examine the accused, must be amended so as to draw adverse inference against the accused if  he fails to answer any relevant material against him therefore, making it easy for  the law enforcers to use DNA tests against him. 2. A specific law should be enacted giving guidelines to the police setting uniform standards for obtaining genetic information and creating adequate safeguards to  prevent misuse of the same. 3. A national DNA database should be created which will be immensely helpful in the fight against terrorism. 4. More well-equipped laboratories should be established to handle DNA samples and evidence. 5. Efforts should be taken to create more awareness among general public, Prosecutors, judges and police machinery. REFORMS REQUIRED: - The 185 th Law Commission Report, the findings of the REFORMS REQUIRED: Malimath Committee and the principles evolved in various case laws in the courts have to be considered by the Legislature. It is very important for the legislature to either amend Section 112 of the Indian Evidence Act so as to make DNA tests  permissible or to pass a separate statute dealing with the validity of DNA tests regard regarding ing the issue issue of child child patern paternity ity.. Withou Withoutt a positi positive ve interv intervent ention ion from from the legislature, these issues will be shrouded with doubt. CONCLUSION: - The presumption of legitimacy is an important presumption for the social setup prevalent in India. But, it is equally important to take into account the changing social trends and the changing nature of marital relationships and thereby incorporating new provisions to accommodate these changes. With the increase in cases of divorce and maintenance being filed, it becomes important to have DNA tests a valid proof for or against the parenthood of a child. The new amendments or statutes should be in the best interest of both the child and the couple. The consequences of a DNA test must be analysed carefully and safety measures should also be meted out in cases of the child turning out to be illegitimate. The Legislature should also look into the question of DNA tests being violative of  Article 21 of the Constitution and it should come up with safeguards to protect the Right to Personal Liberty. 9

The relevance of DNA tests in paternity issues is increasing in today’s world and it is high time that we come up with a separate legislation dealing with it.

REFERENCE The Modern Law of Evidence by Adrian Keane. Universal’s Criminal Law Manual. thefreeldictionary.com The website of LSU Law Center  legalserviceindia.com Article on Legitimacy by Oxford University Comparative Law Forum (OUCLF)

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